SCOTUS and the Travel Ban

Almost four months ago to the day, President Trump sent out the following tweet: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” The emphatic message came on the heels of a Ninth Circuit decision refusing to enforce the first travel ban on individuals from seven enumerated countries. Though the President’s promise did not immediately come true — instead, the administration rolled out a second, updated travel ban — it appears that the next stop will indeed be the Supreme Court.

Last week, the Fourth Circuit—like the Ninth Circuit in the context of the first travel ban— upheld a freeze on the revised travel ban, in an opinion which can be found here. The Fourth Circuit based its decision on a few different factors. First, relying on the First Amendment’s Establishment Clause, the court held the President has broad power over immigration, but this power to deny entry should not allow the Executive to establish a religious orthodoxy or “favor or disfavor one religion over another.” Applying those principles to the revised travel ban, the court determined the “the President [is wielding his power] through an executive edict that stands to cause irreparable harm to individuals across the nation.” The court also found the evidence in record creates a “compelling case” that the travel ban’s primary purpose is religion. This finding was based on President Trump’s anti-Muslim statements during the campaign and his “intent, if elected, to ban Muslims from the United States.” The majority found these statements were sufficiently related in time and connected to the travel ban that they could be relied on as evincing the President’s intent.

In addition to finding religious animus, the majority also balanced the national security justifications presented by the travel ban against the harm it would cause. It determined the national security interest was outweighed by the ban’s harm, which “permeates and ripples across entire religious groups, communities, and society at large.”

Ultimately, the court determined that the judiciary should not “blindly defer” to executive orders. In reaching this conclusion, the majority opinion stated “we would do a disservice to our constitutional structure” if it did not fulfill its purpose of checking the executive branch and reviewing the law.

The Fourth Circuit’s decision was not unanimous—three judges filed separate dissents, each joined by one another. One dissent, in particular, found it inappropriate to look beyond the face of a race-neutral order to find ambiguity and defeat plain meaning. The dissenting judge warned that opening the door to looking at campaign statements has “no rational limits.”

Since then, the Trump administration has asked the Supreme Court to review the Fourth Circuit’s decision, and the case appears to be on the fast track to the highest court. The decision is rife with areas for Supreme Court clarification. Each of the main points relied on by the majority—the purported animus, the power of the President to deny entry, the national security interests, and the role of the courts in checking the executive, if Trump’s recent tweets about the revised ban will have any effect in evincing intent—will likely warrant clarification and decision.